Employers hold the responsibility of providing a workplace environment which is free from discrimination.
Under the Fair Work Act 2009, unlawful workplace discrimination occurs when an employer takes adverse action against an employee or prospective employee because of the following attributes of the person:
- Sexual preference
- Physical or mental disability
- Marital status
- Family or carer’s responsibilities
- Political opinion
- National extraction or social origin
Adverse action can include action that is unlawful if it is taken for a discriminatory reason. Examples of adverse action include dismissing an employee, injuring an employee in their employment, discriminating between one employee and other employees, refusing to employ a prospective employee, altering an employee’s position to their detriment and discriminating against a prospective employee on the terms and conditions in the offer of employment.
Discrimination can occur in all different ways in the workplace, for example, it may come in the form of jokes and it may be intentional or unintentional. For example, if a pregnant woman applies for a promotion for a vacancy within her workplace and is denied the position due to being away on parental leave – this would be considered unlawful discrimination.
However, employers must be careful not to confuse discrimination with general employee performance. An action is only considered adverse action if it occurs due to one or more of the above attributes (race, sex, religion etc.). If this is not the basis of the action, it may not be considered an act of unlawful discrimination.
For example, it is not unlawful to alter a person’s employment if the reason is not based on one or more personal attributes (race, sex, age etc.) but instead is related to the employee’s abilities to perform their daily duties.